Organic Consumers Association

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Groups Challenge Major USDA Change to Organic Rule: Customary Public Comment Process Averted to the Chagrin of Petitioners

organic bananas

Organic stakeholders have filed a lawsuit in federal court, maintaining that the U.S. Department of Agriculture (USDA) violated the federal rulemaking process when it changed established procedures for reviewing the potential hazards and need for allowed synthetic and prohibited natural substances used in producing organic food. A coalition of 15 organic food producers and farmer, consumer, environmental, and certification groups asked the court to require USDA to reconsider its decision on the rule change and reinstitute the agency's customary public hearing and comment process.

When it comes to organic food production, consumers and producers expect a high level of scrutiny and are willing to pay a premium with the knowledge that a third-party certifier is evaluating compliance with organic standards. The burgeoning $35+ billion organic market relies heavily on a system of public review and input regarding decisions that affect organic production systems and the organic label.  The multi-stakeholder National Organic Standards Board (NOSB)[1], appointed to a 5-year term by the Secretary of Agriculture, holds semi-annual meetings to solicit public input and to write recommendations to the Secretary on organic policy matters, including the allowance of synthetic and non-organic agricultural materials and ingredients.

The unilateral agency action taken to adopt major policy change without a public process, the plaintiffs maintain, violates one of the foundational principles and practices of OFPA —public participation in organic policy-making. In adopting the Organic Foods Production Act of 1990 (OFPA), Congress created standards for organic certification and established the NOSB to oversee the allowance of synthetic materials based on a determination that they do not cause harm to human health and the environment and are necessary in organic food production and processing, given a lack of alternatives. Under the law, a review of these materials takes place on a five year cycle, with a procedure for relisting if consistent with OFPA criteria. Plaintiffs in this case maintain that the USDA organic rule establishes a public process that creates public trust in the USDA organic label, which has resulted in exponential growth in organic sales over the last two decades.

At issue in the lawsuit is a rule that implements the organic law's "sunset provision," which since its origins has been interpreted to require all listed materials to cycle off the National List of Allowed and Prohibited Substances every five years unless the NOSB votes by a two-thirds majority to relist them. In making its decision, the NOSB is charged with considering public input, new science, and new information on available alternatives.

In September, 2013, in a complete reversal of accepted process, USDA announced a definitive change in the rule it had been operating under since the inception of the organic program without any public input.  Now, materials can remain on the National List in perpetuity unless the NOSB takes initiative to vote it off the List.

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